Privacy in the Age of the Internet: Lawful Access Provisions and Access to ISP and OSP Subscriber Information

Abstract

Bill C-30 (the Protecting Children from Internet Predators Act) and the Protecting Canadians from Online Crime Act are two recent attempts by the Canadian government to create incentives for Internet Service Providers (ISPs) and Online Service Providers (OSPs) to disclose the subscriber information of Internet users to government agencies. In this article, I argue that while such provisions may not violate s 8 of the Charter based on current judicial interpretation, they ought to be found unconstitutional. To date, the Supreme Court of Canada’s search and seizure jurisprudence uses a normative framework that does not distinguish between defining the right to privacy and justifying limitations of it. This approach is not consistent with that for other Charter rights. The recent decisions of the Supreme Court in R v Spencer and R v Fearon may signal a slight shift, but they do not go far enough. If Courts defined privacy interests more broadly than under current law and required the government to justify restrictions on these interests under s 1, this would create a legal regime that achieves a better balance between competing privacy and security interests.

Keywords: privacy law, search and seizure, lawful access provisions, Canadian Charter of Rights and Freedoms, Canadian constitutional law, proportionality in constitutional law, law and technology